This is Why 18 U.S.C. § 922 Needs to be Amended

A couple of days ago in the little town of Orrville, Alabama, a man “waving a gun” walked into a Dollar General Store and forced a cashier and a customer into a break room.  Oddly enough, the force field generated by the posting of this sign

did not prevent Kevin McLaughlin from walking through the doorway, gun in hand.

The customer, one Marlo Ellis, was – in accordance with the sign – carrying his firearm concealed.  He turned, drew his weapon and shot McLaughlin once in the chest.  McLaughlin was DRT.

Alabama law does not require a permit for open carry, but does for concealed.  According to the story, the police are checking to ensure Ellis was properly permitted, though the DA stated that he didn’t believe any charges would be pressed, regardless.  HOWEVER, Ellis is currently out of jail on bond, facing charges of “rape in the second degree and enticing a child for immoral purposes, stemming from a 2013 investigation involving a girl under the age of 16.”  The DA stated in the story that Ellis was within his rights to have a CCW permit because he has not yet been convicted.

I don’t think so.

Question 11b on BATFE form 4473 (PDF) asks:

Are you under indictment or information in any court for a felony, or any other crime, for which the judge could imprison you for more than one year?

And the instructions for questions 11b through 11l state:

Generally, 18 U.S.C. § 922 prohibits the shipment, transportation, receipt, or possession in or affecting interstate commerce of a firearm by one who: has been convicted of a misdemeanor crime of domestic violence; has been convicted of a felony, or any other crime, punishable by imprisonment for a term exceeding one year (this does not include State misdemeanors punishable by imprisonment of two years or less); is a fugitive from justice; is an unlawful user of, or addicted to, marijuana or any depressant, stimulant, or narcotic drug, or any other controlled substance; has been adjudicated mentally defective or has been committed to a mental institution; has been discharged from the Armed Forces under dishonorable conditions; has renounced his or her U.S. citizenship; is an alien illegally in the United States or an alien admitted to the United States under a nonimmigrant visa; or is subject to certain restraining orders. Furthermore, section 922 prohibits the shipment, transportation, or receipt in or affecting interstate commerce of a firearm by one who is under indictment or information for a felony, or any other crime, punishable by imprisonment for a term exceeding one year.

Mr. Ellis is under indictment.  He is may be a “prohibited person” and can might be charged with possessing and carrying a weapon illegally.

A weapon which he used to, quite possibly, save several lives, including his own.

The local DA might not charge him, but a Federal prosecutor certainly could, and I wouldn’t put it past them.  The number of “crimes” that carry a possible sentence of “imprisonment for a term exceeding one year” is insane.  Just being under indictment for one negates your right to arms.  Crimes like “providing police with a false name” for instance.  Or walking out of a restaurant on a $25.01 tab.

Mario Ellis might very well be a child-raping scumbag who should be thrown under the jail – but until he goes to trial he should either be sitting in a cell or he should have all the rights of any other citizen.

UPDATE:  After carefully scrutinizing 18 U.S.C. § 922, I’m certain that it’s illegal for someone to SELL to a person known or believed to be under indictment, but I’m not so certain that it’s illegal for someone under indictment to possess.  I think it’s a gray area that Prosecutors might play in.  I have altered the post to reflect this.

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